- ABSTRACT
Life is never easy, is something that every person understands through their experiences at one point but life is ever more tiresome and laborious to the members of the transgender community, especially its minors. It’s quite appalling that even in the 21st century that we as a legal community are failing as much as 4.9 lacs people not only as a government but a nation too. The Transgender Persons (Protection) Bill, 2016 is nothing but wicked to the very fundamentals of the Constitution of India. Criminalising fosterage, begging etc., only for the transgender community without offering alternatives for their upward mobility in society. It is pertinent to understand most of the members of the transgender community are shunned at tender ages of their life and are subjected to all kinds of exploitation by the society. Overviewing the works of the UN in various countries, other human rights organisations in operation globally , the famous Yogyakarta Principles of Indonesia, this paper will come to a conclusive decision on the protection of minors of their community in India. This paper will also project new dimensions to sexual offences committed in the society and will assay to present a gender neutral codification for protection of sexual offences of children in India which is the very essence of what law should be.
“In view of the constitutional guarantee, the transgender community is entitled to basic rights. Moreover, every person must have the right to decide his/her gender expression and identity, including transexuals, transgenders,hijras and should have the right to freely express their gender identity and be considered as a third sex.” – (NALSA V Union of India) Supreme Court of India, 2014
- INTRODUCTION
- The Protection of Children from Sexual Offences Act (POCSO), 2012 was formulated in order to effectively address the sexual crimes committed against minors. But the effectivity of it is a whole separate question to be addressed. In 2014, J. Radhakrishnan.K.S. quoted the childhood of Lakshmi Narayan Tripathi, a Transgender activist in his judgement in the case of NALSA V Union of India. That the Applicant has born as a male. Growing up as a child, she felt different from the boys of her age and was feminine in her ways. On account of her femininity, from an early age, she faced repeated sexual harassment, molestation and sexual abuse, both within and outside the family. Due to her being different, she was isolated and had no one to talk to or express her feelings while she was coming to terms with her identity. She was constantly abused by everyone as a ‘chakka’ and ‘hijra’. Though she felt that there was no place for her in society, she did not succumb to the prejudice. [1]
- Though this account of trauma is something that happened way back before the conception of POCSO Act,2012, there is no evidence that such incidents has stopped among the Indian society. The apathy of this situation is the fact that the primary criminal legislation has failed to protect the victims even the minor one due its infamous biased outlook thus violating a whole lot of fundamental legislations to life in the most drastic way. Though the IPC,1860 is not in question here, it is imperative to have a outward perspective on both to understand the need for legislations to protect the minors of this community especially that the laws are contrary in its nature. It is necessary to bring the change among the government to recognise the community as a sensitive and vulnerable one so as to enact special legislative protections, a basic human right in their case to protect the community especially its minors.
- CRIMES TO BE ACKNOWLEDGED BY THE POCSO ACT, 2012.
3.1 LEGAL RECOGNITION OF CRIMES
- The UN Conventions on Rights of Child is a human rights treaty which sets out to protect all the aspects of a child’s rights including civil, political, economic and cultural rights. A country which has ratified UNCRC is bound to it by International law and India being a party to that Convention has violated the very essence of this human rights treaty.[2] This Convention had two optional protocols, where the second one prohibits the sale of children, child prostitution and child pornography. The POCSO Act enacted by our Government in 2012 though had an able purpose to create a child friendly legal system in view of the sexual crimes committed against them has miserably failed short of its set standard. The Act has failed to cover some of the most common sexual offences committed against children like trafficking, forced prostitution etc.., and thus when the legal actors resort to IPC[3] still they fall short due to colonial nature of its enactment and lack of futuristic amendments and neutrality of gender.
- All the rights guaranteed by Article 2[4] of UNCRC must be available to all children without discrimination on any ground but the criminal legislation of India fails to bring relief to more than half of its victims due to the aforementioned reasons.
- The youth of the transgender community i.e., individuals below the age of 18 are subjected to persistent sexual crimes committed on daily and in some cases even on hourly basis. The crimes exploiting the youth of the transgender/transsexual community though having a varied spectrum lacks the legal effects on the predators.
Thus when sexual crimes committed against minors of the Transgender/Transsexual community, it is imperative for the executive to take due action, and failure due to do so on the basis of the lack of social recognition or social acceptance should result in detrimental action against the executive.
3.2 SURVIVAL SEX
DEFINITION: Survival sex is the act of engaging in sexual activity with another individual or the act of selling sex in order to meet one’s basic survival needs.[5]
The conception of survival sex in any state of affairs begins from homeless youth trying to acquire the basic necessities just to live each day. It is the desperation that kicks a child into such a situation and nothing else as portrayed by a society that promotes harmful stereotypes of the transgender youth. One such a cycle begins it is hard to get out of it especially when there is no external support from the government and its laws.
Our government lacks the necessary data of census of homeless transgender youth and youths involving in survival sex aka prostitution as propagated by the societal stereotypes in India.
An article published by Journal of Youth and Adolescence[6] accounts that one in four homeless runaways engage in survival sex inspite of knowing its dangerous risks and thus there is an imminent need for the following measures to be taken by the necessary Government of each States and the Centre for the protection they have obliged to provide.
- a) Youth of the community who have chosen this recourse must be provided with the basic rehabilitation centres by the government and sexual abuse committed against them during this duration must also be taken action against.
- b) To prevent the minors from entering into such acts for survival, proper homeless shelters are to be set up by the governments in each district to fulfil their basic needs.
3.3 TRAFFICKING
LGBT sex trafficking is commonly overlooked and rarely reported by local and national governments. The underreporting of sex trafficking among this population makes it difficult to understand the specific nature of the crimes and the total number of people affected.
Most victims of sex trafficking in this community are the homeless youth who do not have a choice for survival and get pushed into it .At first glance, adolescents who work in the commercial sex industry may be identified as prostitutes. As prostitution is illegal in most countries, adolescents may initially be labelled as criminals. However, since sex trafficking and prostitution involve the sale of sex and sexual acts, adolescents are actually, according to the legal criteria, the victims of criminal activity, i.e., of sex trafficking. Specifically, adolescents who are forced into commercial sex acts through the use of coercion, fraud, or threats are considered victims of sex trafficking regardless of their age, and any person younger than age 18 involved in any form of commercial sexual exploitation[7] Minors are targeted more frequently because they are easy to manipulate and unable to protect themselves. LGBT minors who are homeless are at the highest risk for sex trafficking and sexual exploitation. Trafficking in some cases even extent to international boundaries and in such situations, freedom becomes only an idealistic thought due to unsettling social setup of each countries. Thus it is a pressing issue for the legal system of our country to bring in reformative legislations such as adopting United Nations Global Initiatives to Fight Human Trafficking[8] to a scale of the most modicums in our country.
3.4 PENETRATIVE/ NON PENETRATIVE SEXUAL ASSAULT
Transgender people are the targets of vicious and blatant forms of violence. The violence subjected to the transgender community is not only of random attacks by street-goers or the family members itself but also by the government authorities in schools, police stations, hospitals, etc.., which is quite ironic considering the purpose of above said authorities. Approximately 50% of transgender and intersexed individuals have been raped or assaulted in their life.[9] Tran phobic bigotry, like racist violence, allows society to falsely identify the victims of violence as the provocateurs of violence. Despite the fact that transgender individuals are much more often victims of violence than they are perpetrators, transgender persons are frequently portrayed in the media as psychotics and criminals.
- Transgender people are often sexually targeted specifically because of their gender identity.
- Societal discomfort with transgender persons has rendered transgender victims of sexual assault, gay-bashing, and domestic violence without necessary services. Rape violence shelters are often unprepared to address the issues of transgender people.
The social system fails to actively fight the crimes of this nature because of its conservative nature even for the binary population in India. The indifference in the society and the criminal and legal system have towards this crime is monstrous for the 21st century where we claim to be a more evolved community of humans.
If the legal community fails to take action upon the actors of such crimes then we have truly failed to protect even the basic human dignity of people.
3.5 SEXUAL BULLYING: Sexual bullying is the act of harassment of an individual using their sexuality or gender; it can be verbal, physical or emotional. Transgender students experience more of these kinds of bullying than the normative rest. The most popular circles for such bullying and harassment are the school grounds. On Dec8, 2011, sexual bullying was identified as a form of violence endangering the human rights of LGBT in the speech given by U.N. Secretary General Ban ki moon in his speech marking the occasion Human Rights Day.[10]This act of sexual crime is not pertained to a particular country but is more inclusive of all societies. The effect of this crime has the same lasting impacts as any other sexual crimes which last through their entire adulthood and sometime results in suicide.
Our laws do not consider sexual bullying as a form of crime to be taken action against but due to the inherent trauma it brings on the victims it is necessary to acknowledge this under sexual crimes against children.
- RIGHTS AVAILABLE AT PRESENT TO THE TRANSGENDER MINORS:
“The transgender community is India’s 21st century new untouchables.”[11] The non recognition of their sexual and gender identity is a violation of their various fundamental rights, which are protected by the constitution of India and other international human rights conventions.
4.1 INFRINGEMENT OF ARTICLE 14 AND ARTICLE 21 OF THE CONSTITUTION:
Equality is one of the magnificent corner-stone of Indian Constitution. Article 14 ensures equal protection of law to all ‘persons’. Thus the word person doesn’t refer to male or female but it is for all the citizens. Hence even the community of transgender are also entitled to equal protection of all laws. As per Article 14, State is bound to enact legislation to protect all the strata of society. Article 14 also pushes for positive discrimination and the transgender community in India being one of the vulnerable and sensitive minority groups must be entitled to canopy of protection entitled under Article 14 of Constitution of India.
Article 21 is one of the most extensive fundamental rights by the law of the land, which gives a canopy of protection to a person’s life and personal liberty. Herein ‘life’ does not refer to mere animal existence; it does include the right to live with personal dignity. Moreover, recognition of one’s gender identity lies at the heart of the right to dignity.
4.2 UN CHARTER: Article 1 which reads as “respect for human rights and for fundamental freedoms for all without any distinction”. Similarly UDHR states in Article 2 that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind.” Violence against transgender in any form is violation of human rights. Hence denying fundamental rights based on sexual orientation is null and void. The lack of effective legislation for a particular community is also an indicator of negative discrimination of the community. India being a ratified party of UDHR is obliged to adhere it.
4.3 YOGYAKARTA PRINCIPLES:
The Yogyakarta Principles was formulated by applying the International Human Rights law in relation to sexual orientation and identity. The principles of Yogyakarta are not inconsistent with the fundamental rights guaranteed by the Constitution of India and hence it must be followed.
PRINCIPLE 1, of Yogyakarta again bestows upon every individual the right to universal enjoyment of Human Rights which encompasses individuals of all sexual orientation and gender identities.
PRINCIPLE 4, the right to life is bestowed on every person. There should be no arbitrary declination of this right on the basis of any strata of discrimination (sexual orientation and gender identity).
PRINCIPLE 11, every person is entitled protection from all kinds of sale, trafficking, exploitation not limited to sexual orientation. The measures designed to tackle such incidents should address various factors that increase the vulnerability including that of inequalities and discrimination that arises as a result of prejudice over sexual orientation and gender identity.
The above mentioned legislations offer the umbrella of protection to the minors of the transgender/transsexual community and are thus indispensable in executing the justice deserved.
- CONCLUSION:
“An unjust law is no law at all”-Thomas Acquins
The above statement raises an irrefutable query over the validity of some of the legislations in India. The IPC,1860 is a code of colonial times and to manoeuvre with that in today’s times without even the basic amendments voicing for the justice of each and every person portrays the sleazy nature behind all the three bodies ; the legislative, the executive and the judiciary. Moreover even the POCSO ACT, 2012 doesn’t do justice in covering all the sexual crimes committed against children. The reluctance on the part of the government over alienating the majority of the population over this issue shows its constant trepidation over a feasible outcome. The soul of law as given in the Preamble of the Constitution fights for Justice on all facets and the failure or the indifference attitude over this issue by the government even after the due acknowledgement of the judiciary is nothing but incomprehensible. Today as much as 4.9 lakh people are living as the “invisible minority” of our country where they do not get the basic human rights available or even the justice over the infringement of one. The civil rights endowed in a country are for each and every one of its citizens and sometimes the legal recognition over social acceptance (i.e.,) the tyranny of the majority is what a county needs to move forward as community, a way we have yet to start trotting on. It must be acknowledged that the Indian legal system is in need of a much deserved evolution. An article dated February 09, 2018 by the news minute carried a heartbreaking story about a 15 year old boy killing himself. The suicide note he left stated that he took this decision and killed himself ‘after his peers teased him for being effeminate”[12]This Paper is a dawning push for the conversation to get started so that no more Ranjith Kumars die because we as a legal community were concerned with something else.
The author for the paper are Swetha E and Sheeba Devi from School of Excellence in Law, Chennai presented in the National Seminar on Protection of Children from Sexual Offences at Bengal Law College in association with RostrumLegal.
References
[1] Quoted by Justice Radhakrishnan.K.S in the case of NALSA V Union of India WP. No. 604 of 2013
[2] www.unicef.org/crc/index_30229.html-5:40 p.m-15.02.2018
[3] Indian Penal Code,1860.
[4] United Nations Convention on the Rights of the Child-November 02,1989.
[5] “New Report Offers A Look At ‘Survival Sex’ and the LGBTQ Youth Who Are Turning To It”. The Huffington Post. Retrieved 13 May 2017.
[6] “Prevalence and predictors of sexual risks among homeless youth”- Halcon, Linda; Lifson, Alan (2004). ISSN 0047-2891
[7] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4204396/-07:04a.m-14-02-2018.
[8] March 2007
[9] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4204396/-09:21p.m-15-02-2018.
[10] Human Rights Day message at U.N.Headquarters in New York city given by U.N.Secretay General Ban ki-moon.
[11] https://www.google.co.in/amp/s/blog.ipleaders.in/national-legal-services-authority-v-uoi/amp/-salmaJ-09:37p.m-15-02-2018.
[12] https://www.thenewsminute.com/article/15-year-old-boy-kills-self-tn-blames-bullying-classmates-suicide-note-76219-16:42-15-02-2018.